THE NET NEUTRALITY CONTROVERSY DE-MYSTIFIED

There has been a lot of dust kicked up lately in the public sphere around the impending rollback by the Federal Communications Commission (FCC) of the net neutrality regulations. Mixed in this dust is a lot of misinformation and campaigning by the various interests. Below you will find my best shot at clearly describing the background, current situation and possible future outcomes.

WHAT IS NET NEUTRALITY? Net neutrality is the principle that Internet service providers (ISPs) (think of the giants Verizon, AT&T and Comcast) must deliver all content at the same speed and cost, so the big guys (think Amazon, Google, and Facebook) and the small guys (use your imagination here) pay the same fees for the same speed. This principle mandates a level playing field.

WHERE DOES THE NET NEUTRALITY MANDATE COME FROM? In 2015, the FCC passed regulations reclassifying broadband Internet access service as a Title II telecommunications service. This means that the ISPs became subject to “common carrier” provisions that regulate utilities (like transportation and telephones) thereby prohibiting ISPs from discriminating how broadband services are provided. To see the really vague definition of “common carrier” look at the FCC Act - 47 U.S. Code § 153 (11).

WHAT’S HAPPENING NOW? The FCC is scheduled to vote on December 14th on removing this “common carrier” classification and restoring the broadband Internet access service to a Title I information service, which would be exempt from common carrier regulations. Once ISPs are no longer classified as common carriers, they will free to discriminate among websites and Internet services, meaning they will be able to charge more to allow certain websites and services to operate with more bandwidth.

WHY IS THIS HAPPENING NOW?The Trump administration is on a campaign to reduce regulations in many industries. The current chairman of the FCC is Ajit Pai (a former lawyer for Verizon by the way) who is a vocal critic of net neutrality. He believes that regulation has held back ISP investment in Internet infrastructure. Pai says “Instead [of the net neutrality regulations], the FCC would simply require internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them.”

IS IT A POLITICAL ISSUE? Well, in a sense. There are 5 FCC commissioners. 3 are Republicans and 2 are Democrats. They are expected to vote along party lines – therefore you can say goodbye to the net neutrality regulations. But it’s also a fiscal philosophical issue. Republicans say regulations holdback investment and don’t allow the market economy to work efficiently. Democrats say regulation is necessary to protect the public from the overly powerful ISPs. Sound familiar?

WHO’S RIGHT? The coverage from both sides you will see are quite biased. Republicans say the regulations are hurting necessary investment, and more investment means better and faster Internet. Democrats say without net neutrality critical open access to the Internet will be lost. So, it’s the Republicans v. the Democrats and the Verizons/AT&Ts/Comcasts v. the Amazons/Googles/Facebooks. Unclear where the little guy is in this battle of the behemoths. Who’s right? Who knows? But, for sure, the truth lies at neither extreme.

WHAT WILL HAPPEN AFTER NET NEUTRALITY IS GONE? The ISPs claim they will continue to honor net neutrality – voluntarily - and that the consumer public will demand it. Those in opposition claim that only the large and established companies will be able to afford the fast Internet which will make it more difficult for new companies to enter the market. However, I assure you that world as we know it will not come to an end. Let’s wait it out and see.

SOME PERSPECTIVE!When examining claims of those who say that rolling back the restrictions means the end of free and open Internet as we know it, it’s important to recognize that the net neutrality regulations have only been in place since 2015 – and the Internet seemed to thrive fine prior to that without the regulations. So, it’s not reasonable to adopt the doomsday scenarios advanced by net neutrality advocates.

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William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.